AFCARS

Supplemental Notice of Proposed Rule Making on AFCARS (ICWA Data)

Kate Fort4 Comments

Due in parts to comments filed on the original proposed rule change for Automated Foster Care and Adoption Reporting System (our primary source of data regarding kids in care), the Administration for Children and Families has added collecting ICWA-related data to the proposed rule:

In this supplemental notice of proposed rulemaking (SNPRM), ACF proposes to require that state title IV-E agencies collect and report additional data elements related to the Indian Child Welfare Act of 1978 (ICWA) in the AFCARS. ACF will consider the public comments on this SNPRM as well as comments already received on the February 9, 2015 NPRM and issue one final AFCARS rule.

Here is the proposed rule page, and we strongly recommend tribes and organizations file comments on the proposed changes–which are due May 9. The comments make a difference:

ACF issued the AFCARS NPRM (80 FR 7132, hereafter referred to as the February 2015 AFCARS NPRM) to amend the AFCARS regulations at 45 CFR 1355.40 and the appendices to part 1355. In it, ACF proposed to modify the requirements for title IV–E agencies to collect and report data to ACF on children in out-of-home care and who were adopted or in a legal guardianship with a title IV–E subsidized adoption or guardianship agreement. At the time the February 2015 AFCARS NPRM was issued, ACF concluded that it did not have enforcement authority regarding ICWA and, therefore, was not able to make the requested changes or additions to the AFCARS data elements regarding ICWA.

However, in the time since publication of the February 2015 AFCARS NPRM, ACF legal counsel reexamined the issue and determined it is within ACF’s existing authority to collect state-level ICWA-related data on American Indian and Alaska Native (AI/ AN) children in child welfare systems pursuant to section 479 of the Social Security Act. Such determination was informed by comments received on the February 2015 AFCARS NPRM as well as an extensive re-evaluation of the scope of ACF’s statutory and regulatory authority.

Measuring Compliance with ICWA

Kate Fort

Here is a Casey Family Programs publication, “Measuring Compliance with the Indian Child Welfare Act”

At present, no federal agency is tasked with ensuring state compliance with the protections mandated by ICWA. Without federal oversight, state legislatures, public child welfare authorities and courts are left to interpret ICWA provisions and definitions of “active efforts.”22, 23 Despite overall decreases in rates of out-of-home placements, Indian children remain disproportionately represented in the foster care system, at more than twice the rate of the general population,24 though this varies among states.25

Related, here is a copy of the law professors comments to the original AFCARS proposed rule on collecting data.

There is no statistical data required on Indian children from State or Tribal child and family care agencies. There is also no data on State compliance with ICWA. Under § 429(c), the ACF already possess and exercises the requisite authority to collect ICWA data. 42 U.S.C. 479(c)(3)(A)-(D).
The AFCARS regulations should follow the same requirements for Title IV-B Agencies in ICWA data reporting, as seen in the  PIs released by HHS. [ACYF-CB-PI-14-03 (2014)]. HHS has defined “Title IV-E Agency” “as the State or Tribal agency administering or supervising the administration of the title IV-B and title IV-E plans.” 77 F.R. 896. Under this definition, Title IV-B Agencies may also be Title IV-E Agencies. Due to this, ACF should also include similar ICWA data requirements in AFCARS.

In addition, the SSA also requires AFCARS to “provide comprehensive national information” regarding “the extent and nature of assistance provided by Federal, State, and local adoption and foster care programs and the characteristics of the children with respect to whom such assistance is provided.” 42 U.S.C. 479(c)(3)(d). Not only does this encompass Title IV-B Agencies, but also Title IV-E Agencies, which HHS provides direct Title IV-E funding to Tribes and Tribal child and family service programs under the Fostering Connections to Success and Increasing Adoption Act of 2008. The American Indian / Alaska Native children in these Title IV-B or Title IV-E Agencies are ICWA children, and that data should also be collected in order to “ensure that the [AFCARS] system functions reliably throughout the United States.” 42 U.S.C. 479(c)(4).
Under this legal and policy background, and as recommended by HHS, we recommend ACF add the following data elements and questions to the AFCARS in order to comply with ICWA.

Call for Written Comments on New AFCARS Regulations

Kate Fort

We’ve written about this in the past. Here is a letter from NICWA explaining more about the regulations, and the reason for written comments (and if you scroll to the bottom, they’ve even provided a sample comments letter):

Dear Advocates for the Indian Child Welfare Act,

The National Indian Child Welfare Association has been diligently working for over 25 years to increase state compliance with the Indian Child Welfare Act (ICWA). This has included training of state and tribal workers, helping tribes develop inter-governmental agreements with states, participating in state and federal ICWA cases, and advocating for federal monitoring of state ICWA compliance. One of the areas where the greatest need exists is data collection. No federal agency collects comprehensive data on the status of native children and their families who are involved in state child welfare proceedings and subject to ICWA.

 NICWA has advocated for the Administration for Children and Families (ACF) under the Department of Health and Human Services to collect ICWA data on individual cases, both because of the relationship they have with states through funding and policy, and because of federal law and policy that directs them to collect some related data. ACF has resisted efforts to collect more comprehensive ICWA data in the past, but draft regulations published in the Federal Register on February 9, 2015 propose collecting new data within the federal government’s largest data system for children who are placed in out of home care by state or county child welfare authorities. This system is the Automated Foster Care and Adoption Reporting System (AFCARS) and these proposed regulations present the best opportunity for tribal nations to finally convince ACF to collect ICWA data.

 NICWA is making the case that these proposed regulations should also include ICWA data elements, which are open for public comment until April 10, 2015, but we need your help if we are going to convince ACF to do this. The process for evaluating comments and what changes should be made in AFCARS will look at the number of individual comments ACF receives as well as the content of those comments. In other words, if we are able to provide ACF with substantial numbers of comments that recommend the inclusion of ICWA data elements in AFCARS, we may finally have a federal data system that regularly collects and tracks ICWA data. To make your job of filing comments easier, NICWA has provided a sample comments letter that you can use or modify as you see fit. We are also providing instructions below on how to file your comments electronically.

 This is an almost a once in a lifetime opportunity to finally get a more comprehensive collection of ICWA data. The last time AFCARS was open for substantive changes was in the early 1990’s so we probably won’t see another opportunity like this for many, many years. NICWA will be filing comments, but we also need your help too. If you have any questions about AFCARS, the proposed regulations, or how this will help ICWA compliance, please don’t hesitate to contact either myself or Addie Smith addie@nicwa.org. I want to thank you in advance for your help to increase the information and tools we have to increase protections under ICWA for our native children and families.

Best Regards,

David Simmons

Notice of Public Rulemaking on AFCARS

http://www.gpo.gov/fdsys/pkg/FR-2015-02-09/pdf/2015-02354.pdf

AFCARS Sample Comments Letter

Instructions on how to file comments electronically via www.regulations.gov (see link below for submission)

http://www.regulations.gov/#!submitComment;D=ACF-2015-0001-0001

  1. In the Comment box provide your name, contact information, and who you are submitting the comments on behalf of. State that you are uploading a file attachment that contains your comments. Don’t try to copy your comments letter in here unless it is less than 5000 characters (approximately 1.25 pages of text).
  2. In the Upload File(s) box click on Choose File then select the comments letter from your computer.
  3. In the First Name and Last Name boxes add the contact person’s name
  4. Check the appropriate box for whether you want to show your contact information or whether you are submitting the comments on behalf of a third party.

David Simmons, MSW | Director of Government Affairs and Advocacy

National Indian Child Welfare Association

5100 SW Macadam Avenue, Suite 300

Portland, OR 97239

Additional Call-in For Tribes on AFCARS Proposed Rules

Kate Fort

If you missed Friday’s call, here is another opportunity to call in. In addition, the government is taking written comments on the rule changes through April 10. This is a chance to get the federal government to add ICWA-related reporting requirements to AFCARS, which applies to states and some tribes. By adding ICWA reporting requirements, the federal government has the opportunity to force states to better track ICWA compliance.

Colleagues:

 As we announced earlier this week, the Children’s Bureau will hold national informational calls with stakeholders, states and tribal representatives on the Notice of Proposed Rule Making (NPRM) on the Adoption and Foster Care Analysis and Reporting System (AFCARS) that was published in the Federal Register on Monday, February 9, 2015.

The first call with states and stakeholders was held on Wednesday, February 18th.  The second call for states and stakeholders will take place on Friday, February 20, 2015 from 1:00-2:00 p.m. Eastern. 

We are pleased to announce that we have added a second informational call for tribal representatives.  The two informational calls with tribal representatives will take place on Friday, February 20, 2015 from 3:00-4:00 p.m. Eastern and Wednesday, March 4, 2015 from 3:00-4:00 p.m. Eastern. 

 Attached is the presentation that we use during the calls.  This presentation is the same for all calls and will be available on the Children’s Bureau website shortly.  The agendas with updated call-in information are attached.  The content of the agendas has not changed.

This is a reminder that these calls provide an overview of the NPRM for informational purposes only.  We will not take questions during any of the calls.  If you wish to comment on the NPRM, please submit comments to www.regulations.gov on or before April 10, 2015.  The text of the NPRM can be found here: http://www.gpo.gov/fdsys/pkg/FR-2015-02-09/pdf/2015-02354.pdf

 Please forward this information to interested parties.

 

Call for Tribes on Changes to Adoption and Foster Care Analysis and Reporting Systems

Kate Fort

Call in information and agenda here.

This is an information session [for tribes] for the Children’s Bureau to provide an overview/summary of the Adoption and Foster Care Analysis and Reporting System (AFCARS) Notice of Proposed Rulemaking (NPRM), which was published in the Federal Register on February 9, 2015

From NICWA’s press release:

A Notice of Proposed Rule Making on AFCARS was published in the Federal Register on Monday, February 9, 2015, announcing that ACF intends to change some of the AFCARS reporting requirements. The full text of this Notice of Proposed Rule Making and proposed changes can be found here and an overview is available here.

Currently, there is no requirement for states to report data related to the Indian Child Welfare Act (ICWA) as a part of AFCARS. In addition, AFCARS does not require states to identify children in their care who are eligible for ICWA’s protections. Without this data there is no national information about how and when ICWA is followed in state child welfare systems